JOINT LEGISLATIVE AUDIT AND REVIEW COMMISSION The Virginia General Assembly COMMISSION DRAFT. Review of Virginia s System of Capital Punishment

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1 JOINT LEGISLATIVE AUDIT AND REVIEW COMMISSION The Virginia General Assembly COMMISSION DRAFT Review of Virginia s System of Capital Punishment December 10, 2001

2 Report Summary On November 13, 2000, the Joint Legislative Audit and Review Commission (JLARC) unanimously approved a subcommittee report recommending that JLARC staff conduct a study of capital punishment in Virginia. The report examines the State s implementation of the capital punishment statutes by focusing on two important elements of the system: the use of prosecutorial discretion by Commonwealth's Attorneys, and the judicial review of capital murder cases in which sentences of death have been imposed. This review comes at a time when serious questions are being raised about the State s use of the death penalty. One of the most serious complaints is that the system is racially biased, systematically exposing black persons who are arrested for capital murder to the death penalty in larger percentages than their white counterparts. Beyond the question of race, there is a general concern that the small numbers of eligible cases where prosecutors decide to seek the death penalty (see figure) are not meaningfully distinguishable from the many in which they do not. This, it has been argued, speaks to the arbitrary manner in which prosecutors apply the death penalty statutes in Virginia. There are also concerns about the fundamental fairness of Virginia s judicial review process for capital cases in Virginia. Many believe that Virginia s myriad of procedural restrictions bar the Courts from considering the merits of the claims raised on appeal by defendants who have been sentenced to die. Critics of the system contend that this has reduced the judicial review of death penalty cases to a hollow process, virtually assuring that some persons who are i

3 The Funneling of Capital Eligible Murder Cases Of 970 Cases where there was an Arrest for Murder from 1995 to Were for Capital Eligible Offenses 170 Resulted in a Capital Murder Indictment 64 Were Prosecuted as Death Eligible Cases 46 Resulted in a Capital Murder Conviction 24 Were Given a Death Sentence convicted of capital murder will be executed despite having received constitutionally flawed trials. Supporters of the Commonwealth s system of capital punishment suggest that many of the positions advanced by critics of the system are spurious. They point out that Virginia s statutory scheme for capital murder appropriately distinguishes those first-degree murder cases that qualify for the death penalty from those that do not. Moreover, supporters of the system argue that local prosecutors will pursue the death penalty for only the most heinous of cases in which evidence of guilt is overwhelming. Without the most convincing ii

4 evidence, it is stated, prosecutors will be more likely to seek a plea agreement even if the nature of the crime supports the pursuit of the death penalty. These decisions, it is argued, often appear arbitrary to those who lack insight into the nature of evidence surrounding the case. Regarding the issue of judicial review, supporters of the death penalty agree that lawyers often raise claims that the higher courts are procedurally barred from considering. Still, those in favor of the death penalty argue that most of these claims either involved trial errors that are deemed by the higher courts to be harmless, or they otherwise lacked merit. Given these circumstances, it is believed by supporters of capital punishment that any significant statutory changes made to weaken some of the restrictions in the judicial review process would delay the system with frivolous litigation to the detriment of both the Commonwealth and the ends of justice. Until now, the debate surrounding these issues has not received the benefit of systematically collected data on the application of Virginia s laws governing the use of capital punishment. Rather, the debate has been advanced largely on the basis of anecdotes which have been variously used to demonstrate either the strengths or weaknesses of the system. This report attempts to address that problem through a detailed analysis of cases that involved capital-eligible murders and a review of the outcomes of the State s judicial review process. iii

5 Study Findings The evidence from this study offers a mixed picture of Virginia s system of capital punishment. The findings clearly indicate that race plays no role in the decisions made by local prosecutors to seek the death penalty in capital-eligible cases. However, the findings are equally clear that whether a defendant charged with a capital-eligible crime actually faces the death penalty is more related to the location in the State in which the crime was committed than the actual circumstances of the capital murder. In terms of the judicial review process, the reversal rate for death sentences in Virginia is low. At the earliest stage of judicial review, procedural rules that limit the Virginia Supreme Court s review of claims of trial error, have little impact. However, during the later stages of post-conviction review, both the State and federal courts strictly adhere to procedural restrictions that substantially limit the number of claims of trial error that are reviewed on the merits. Because both the State and federal appellate courts strictly apply these standards, a substantial proportion of claims related to the fairness of capital murder trials are never considered during the post-conviction review process. This study was not designed to address whether the inmates who are currently on death row are innocent of the crimes for which they were sentenced. Nor were JLARC staff in a position to evaluate the credibility of any claims of innocence raised by inmates who have been sentenced to death. Accordingly, it cannot be concluded from the findings presented in this study that the State is executing persons who are innocent of the crimes for which they were sentenced. Still, it should be noted that the magnitude of the evidence against iv

6 capital murder defendants that was examined by JLARC in its review of prosecutorial discretion was considerable. Apart from questions regarding the nature of evidence in capital murder trials, the significant policy issue raised by this study is whether the uneven application of the death penalty statutes and the fact that Virginia s procedural restrictions have forced the State and federal courts to affirm the convictions for a small number of prisoners who may not have received a fair trial, warrant the attention of the General Assembly. Some of the specific findings of this study are summarized as follows: Since the abolition of parole in 1995, nearly eight out of every 10 persons who were arrested for a capital-eligible crime were indicted for capital murder. Overall, these indictment rates were highest for white defendants, persons who were charged with murdering females, and defendants who allegedly committed the offenses in non-urban localities. However, when all these factors are considered together, only those defendants who were charged with murdering females, and those who were arrested for capital murder in nonurban areas, faced a higher probability of being indicted for capital murder. Since 1995, Commonwealth Attorney s have sought the death penalty for nearly three out of every 10 persons who were arrested for a capital-eligible crime. More than any other factor, the location of the crime (in non-urban areas), and whether the defendant was related to the victim were the factors most strongly associated with the decision of prosecutors to seek the death penalty. This means that capital murder cases that are similar on other key facts (such as the vileness of the crime or dangerousness of the defendant, and nature of the evidence pertaining to the case) are handled differently by some prosecutors across the State. Regarding appellate review, the Virginia Supreme Court has affirmed 93 percent of all cases in which a death v

7 sentence has been imposed in the State's circuit courts since In affirming these death sentences, the Court considered and rejected on their merits, 83 percent of all claims of trial error. None of the 119 death sentences reviewed by the Virginia Supreme Court were determined to be excessive or disproportionate. However, in making these determinations, the Virginia Supreme Court appears to have narrowly applied the statutes defining proportionality review in Virginia. At the State and federal habeas corpus stages of the judicial review process, the recognized rate of trial error in cases where defendants were sentenced to death was only two and four percent respectively. This may be partially related to the fact that more than three of every ten claims of trial error made by inmates during the postconviction phase were rejected because they violated procedural restrictions. Location More Than Any Other Factor Is Most Strongly Associated with the Decision by Commonwealth's Attorneys to Seek the Death Penalty. There are two key decisions faced by Commonwealth s Attorneys when presented with a case in which someone has been arrested for a capitaleligible crime. First, they must decide whether the defendant will be indicted for capital murder. If they seek and secure a capital murder indictment, they must next decide whether to pursue the death penalty throughout the entire proceedings. One goal of this study was to identify those factors that appear associated with the decisions prosecutors make at these stages of the adjudication process. In Virginia, there have been well-documented racial disparities associated with the historical use of capital punishment. Notwithstanding the reforms mandated by the United States Supreme Court to address this problem, vi

8 the criticism persists that Virginia s system of capital punishment unfairly targets black defendants. This analysis indicates that those charges are unwarranted. Overall, and contrary to widely held views, white persons who are arrested for capital-eligible offenses are more likely to be indicted for capital murder, more likely to face the death penalty, and, once convicted, more likely to be sentenced to death (see figure). Adjudication of Capital-Eligible Cases Among Black and White Defendants Statewide White Defendants Black Defendants Proportion of Capital-Eligible Murders In Which A Capital Murder Indictment Was Filed 72% 89% Rate at Which Prosecutors Sought the Death Penalty in Capital- Murder Cases 22% 42% Rate at Which the Death Penalty Was Imposed in Cases Where the Prosecutor Sought the Death Penalty 29% 44% However, it was equally apparent from this study that prosecutors in high-density population (typically urban) localities are much less likely to seek the death penalty when confronted with a capital-eligible case than their counterparts in other localities. For example, the overall rate at which local prosecutors in high-density jurisdictions sought the death penalty in capital-eligible cases was 200 percent lower than was observed in medium-density localities (see figure on next page). Thus a key question for this study was whether the factors which vii

9 Statewide Rate at Which Prosecutors Sought the Death Penalty Based on the Type of Jurisdiction 60% 50% 40% 30% 20% 16% 45% 34% 10% 0% High-Density n=96 Medium-Density n=78 Low-Density n=41 appear to be associated with the decision of Commonwealth s Attorneys to seek the death penalty in capital murder cases are related to the specifics of the case (such as type of crime, nature of evidence), external to the case (such as type of locality), or extra-legal (such as the defendant s race). Two factors emerged from this analysis as important indicators of whether prosecutors seek the death penalty: (1) the relationship between the defendant and the victim; and (2) the location of the crime. Commonwealth s Attorneys were less inclined to prosecute a capital murder case as a death case when the defendant was charged with the premeditated murder of a family member or relative. In cases involving premeditated murder among family members, prosecutors noted that they sometimes honored the request of grieving relatives to spare the life of the defendant. However, after statistical controls were applied for other factors related to the specifics of each capital-eligible murder case in which at least one of the required aggravators was present, the location in which the capital murder was viii

10 committed appeared to be most strongly associated with the prosecutors' decisions to seek the death penalty. Specifically, other factors being equal, prosecutors in localities with high population density were significantly less likely than their counterparts to seek the death penalty for persons who were arrested for capital-eligible crimes. Inconsistencies Are Evident in the Statewide Application of Capital Punishment in Virginia Perhaps the key finding of this study is that Commonwealth s Attorneys in different-sized localities handle capital murder cases differently, even when these cases appear strikingly similar on the facts. This is best illustrated by case examples, such as the one presented on the next page. In this example, three cases are presented in which women were brutally raped and murdered in three different jurisdictions. In all three cases, defendants were implicated by DNA evidence and they confessed to the crimes. The prosecutors in the first case asked for the death penalty based on the vileness of the crime and future dangerousness. In the second case, the prosecutor sought the death penalty based on the vileness of the crime. In the third case, the defendant had a prior history of violence and was actually in prison for another rape when he was charged with capital murder in this case. However, the prosecutor agreed to allow the defendant to plead guilty to capital murder in exchange for the guarantee of a life sentence without the possibility of parole. The problems with capital punishment that are illustrated in this study pose some significant policy challenges. On the one hand, no viable system of capital punishment can be sustained without vesting Commonwealth s Attorneys ix

11 Case Example Column A Low-Density Locality A white male abducted a white woman from her place of work, took her to a remote location, raped her, slit her throat and left her in a river. She died as a result of her wounds while crawling away from the river. Evidence of Guilt When in custody, the defendant confessed to a law enforcement officer, DNA implicated him, and there was a witness to the circumstances of the offense and a witness who heard him admit to the offense. Evidence of Aggravation The victim suffered sexual abuse and throat slashing. The defendant had no prior violent felony convictions. The local prosecutor argued for the death penalty Column B Medium-Density Locality A white male raped his estranged wife and then stabbed and strangled her to death because he thought she was having a sexual relationship with a black man. After she was dead, he defiled her body, and then asked a neighbor to call the police. Evidence of Guilt When in custody, the defendant confessed to a law enforcement officer, DNA implicated him, and there was a witness who heard him admit to the offense. Evidence of Aggravation The victim suffered sexual abuse, stab wounds, and strangulation. The defendant had no prior violent felony convictions. The local prosecutor argued for the death penalty Column C High-Density Locality A black male raped and stabbed to death a white female in her home after one of the men he was with forced his way into her apartment. Evidence of Guilt When in custody, the defendant confessed to a law enforcement officer, DNA evidence implicated him, and there was an eyewitness to his offense (co-defendant). Evidence of Aggravation The victim suffered sexual abuse and multiple stab wounds. The defendant had a rape conviction at the time of his arrest for the instant offense. The local prosecutor entered into a plea agreement defendant pled guilty to capital murder with the discretionary authority they need to prosecute these difficult and troubling cases. Conversely, it must be recognized that this discretion, which is so needed to ensure that the system is operated with a sense of proportion, will generate outcomes that cannot be easily reconciled on the grounds of fairness. Thus, as the General Assembly deliberates the issues surrounding the use of the x

12 death penalty, the key question that must be answered is whether some disparate outcomes can be accepted in a system where the ultimate sanction is execution. Judicial Review in Virginia Is Characterized by Narrowly-Defined Sentence Reviews At Direct Appeal and Adherence to Procedural Restrictions During Post-Conviction One of the cornerstones of America s criminal justice system is the process of judicial review. The purpose of appellate review is not to retry cases or consider new evidence, but to ensure that each defendant received a fair trial. In conducting this review the courts are not required to determine whether a correct decision was made, but whether it could reasonably have been made in light of the evidence presented. In making this determination for capital murder cases, the Virginia Supreme Court has repeatedly held that the trial court s judgment must be affirmed unless it appears that it is plainly wrong or without evidence to support it. Even if the appellate court finds that an error has occurred, it must distinguish between egregious errors that require a new trial or sentencing hearing versus those that are harmless. Thus the philosophy of appellate review is that defendants are entitled to a fair trial, not a perfect trial. Operating within this framework of judicial review, the Virginia Supreme Court has overturned the decision of the trial courts in only seven percent of all cases in which a defendant was sentenced to death. In addition, the Virginia Supreme Court s statutorily required assessment of whether the sentence imposed by the court was excessive (even if the trial was error free) xi

13 has never produced a reversal of a death sentence. This can be partly attributed to the narrow but legally permissible manner in which the Virginia Supreme Court defines and implements sentence review for death penalty cases. During post-conviction review, it appears that the Virginia Supreme Court s procedural rules and federal law do substantially limit the number of claims of trial error that are reviewed on the merits. While the Court has established standards that would allow the defaulted claims to receive a review on the merits, habeas petitions for post-conviction relief generally do not meet these standards. Because both the State and federal courts strictly adhere to these standards, a substantial proportion of claims related to the fairness of capital murder trials are never considered during the post-conviction phase of judicial review (see figure on next page). It should not be concluded from these findings, however, that the restrictions in place in Virginia have resulted in the execution of an innocent prisoner. To prevent a miscarriage of justice, the State and federal courts may consider claims that would have otherwise been defaulted. Nonetheless, according to several written opinions of federal court judges, the procedural restrictions have forced the courts to affirm the convictions for some prisoners who were unquestionably guilty of capital murder, but who, nevertheless, did not receive a fair trial. Whether this is acceptable public policy is a question for the General Assembly. xii

14 Disposition of Claims by the Virginia Supreme Court, the United States District Court and the Fourth Circuit Court of Appeals Disposition of Claims by Court Procedurally Defaulted Other 9% 8% 33% 35% 20% 5% Considered and Rejected on the Merits 83% 13% 7% 54% 58% 75% Direct Review Virginia Supreme Court n=2590 State Habeas Virginia Supreme Court n=1120* Federal Habeas United States District Court N=1578 Federal Habeas Appeal to the Fourth Circuit Court of Appeals N=543 *Based on petitions filed since More Structure and Public Scrutiny of the Executive Clemency Process Is Needed The final stage of the post-conviction review process for persons who have been sentenced to death in Virginia is executive clemency. Through the Constitution of Virginia and the Code of Virginia, Governors have been vested with the power to commute capital punishment sentences and to grant pardons or reprieves. This authority provides what many believe is a necessary safeguard against the possible execution of an innocent prisoner. Under current Virginia law, executive clemency is the only legally assured remedy available for xiii

15 defendants who develop newly discovered non-dna evidence which might prove their innocence more than three weeks after they have been sentenced to death. This study found that 36 percent of all capital defendants on death row who submitted a clemency petition raised a claim of innocence (see figure). In 18 percent of those cases in which innocence was asserted the Governor granted a commutation or a complete pardon. A more comprehensive assessment of the adequacy of executive clemency as a safeguard against the execution of an innocent prisoner was not Claims Presented to Virginia s Governors at Clemency Stage Claims of Innocence n=22 Pleas for Mercy n=42 36% 64% Total N=64 Clemency Granted 18% 5% 9% Executed 82% 95% 91% xiv

16 possible because of the manner in which this process is implemented and the lack of available records associated with the process. Currently, the innerworkings and deliberations of the clemency process occur largely beyond public view and are shielded from serious scrutiny. In the absence of a more formalized clemency process, the reliability of this part of the system will likely remain in question. xv

17 Table of Contents Page I. INTRODUCTION... 1 Evolution of Capital Punishment in Virginia... 4 JLARC Review Report Organization II. PROSECUTION OF CAPITAL ELIGIBLE CASES Use of Discretion by Commonwealth's Attorneys in Prosecuting Capital Eligible Cases.45 III. THE APPELLATE AND POST-CONVICTION REVIEW PROCESS FOR CAPITAL PUNISHMENT CASES IN VIRGINIA Administration of the Appellate and Post-Conviction Review Process for Death Penalty Cases in Virginia..82 Executive Clemency in Virginia..118 Appendixes Appendix A Weights For Localities In The Study Sample Appendix B Standards for the Qualifications of Counsel in Capital Cases Appendix C Sampling Errors Appendix D Data Collection Instrument Used in the Analysis of Prosecutorial Discretion Appendix E Claims Submitted at Each Stage of Appellate Review Appendix F Agency Responses

18 I. Introduction On November 13, 2000, the Joint Legislative Audit and Review Commission (JLARC) unanimously approved a subcommittee report recommending that JLARC staff conduct a study of capital punishment in Virginia. Presently, Virginia is one of 38 states in which a person can be sentenced to death for committing what is statutorily defined as capital murder. Since the year that the Virginia General Assembly completed the modification of the State s new death penalty statutes to comply with the rulings of the United States Supreme Court -- the Commonwealth of Virginia has executed 82 prisoners. In 2000, Virginia accounted for eight of the 85 executions (nine percent) that were carried out in the United States. Two principal concerns provided the impetus for the Commission s focus on capital punishment in Virginia. The first relates to the use of prosecutorial discretion, or more specifically, the fairness with which local prosecutors apply the statutes that define a capital crime. Under current law, the General Assembly has established 20 types of premeditated murder which shall constitute capital murder. However, opponents of capital punishment contend that when faced with someone who has been arrested for a crime that can legally be charged as capital murder in Virginia, some prosecutors are clearly more likely than others to indict the accused for capital murder and pursue the death penalty. Critics of the system acknowledge that complete uniformity in the prosecution of all capital cases is neither possible nor desirable. Nonetheless, they believe that the death penalty is often pursued in an arbitrary manner 1

19 through a system that is subject to the influence of external factors that are either extra-legal or impermissible. The second major concern that gave rise to the Commission s inquiry into capital punishment relates to the fundamental fairness of Virginia s appellate review process for persons who have been sentenced to die. According to some legal experts, the judicial review of capital cases in Virginia -- a bedrock element of America s criminal justice system -- has become a hollow process in which death row appeals are routinely dismissed for technical reasons, notwithstanding the merits of the appeal. Noting that the length of time that inmates spend on death row in Virginia has declined from an average of 10 to six years since 1995, concerns have been expressed that the State s expedited appellate review process could one day result in the execution of an innocent man or woman who was poorly represented at trial. In November 2000, the Commission also expressed an interest in State policy relating to the use and storage of DNA evidence. Subsequent to the General Assembly actions during the 2001 session, however, the Commission approved a study workplan in May 2001 focusing on the use of prosecutorial discretion and the appellate review process. Supporters of the Commonwealth s system of capital punishment suggest that many of the positions advanced by critics of the system are spurious. They point out that Virginia s statutory scheme for capital murder appropriately distinguishes those murder cases that qualify for the death penalty from those that do not. Moreover, supporters of the system argue that local 2

20 prosecutors will pursue the death penalty for only the most heinous of cases in which evidence of guilt is overwhelming. Without unequivocal convincing evidence, it is argued, prosecutors will be more likely to seek a plea agreement even if the nature of the crime supports the pursuit of the death penalty. Supporters maintain that those without insight into the evidence surrounding the case respond by mistakenly branding the decision-making process as arbitrary and capricious. Regarding the issue of judicial review, supporters of the death penalty agree that lawyers often raise claims that the higher courts are procedurally barred from considering. Still, those in favor of the death penalty argue that most of these claims either involved trial errors that are deemed by the higher courts to be harmless, or they otherwise lacked merit. Given these circumstances, it is believed by supporters of capital punishment that any significant statutory changes made to weaken some of the restrictions in the appellate process would delay the system with frivolous litigation to the detriment of both the Commonwealth and the ends of justice. Until now, the debate surrounding these issues has not received the benefit of systematically collected data on the application of Virginia s laws governing the use of capital punishment. Rather, the debate has been advanced largely on the basis of anecdotes which have been variously used to demonstrate either the strengths or weaknesses of the system. This report attempts to address that problem more systematically through a detailed analysis of a representative cross-section of cases that involved capital-eligible murders, 3

21 and a review of the outcomes of the State s appellate review process. The remainder of this chapter offers a discussion of the history and evolution of capital punishment in Virginia, provides a brief overview of how capital-eligible cases are processed through the system, and presents a summary of the approach that was used to conduct this study. EVOLUTION OF CAPITAL PUNISHMENT IN VIRGINIA Over the first half of the 20 th century, 42 states including Virginia authorized the execution of persons convicted of capital crimes. By 1972, due to numerous amendments and enhancements, the scope of Virginia s capital punishment statutes was unusually broad, covering any first-degree murder and numerous other offenses that did not involve murder. Further, as in most of the states where capital punishment was legal, Virginia juries were allowed unguided discretion in deciding whether a person convicted of capital murder should receive a death sentence or a term of life imprisonment. While the broad reach of the law defining capital punishment did not lead to wholesale executions in Virginia, troubling racial disparities were evident in the application of this sanction. Moreover, legitimate questions were being raised nationwide concerning the absence of any meaningful distinction between those criminal cases where the death penalty was pursued from those in which it was not. Due in large part to these problems, the United States Supreme Court effectively invalidated the capital punishment statutes in all states in a landmark decision Furman v. Georgia -- handed down on June 29, Citing the 4

22 overly broad definitions of capital crime used by Georgia, and the apparently arbitrary and capricious nature in which these statutes were applied, the Court ruled that the death penalty as previously administered amounted to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. As a result of this ruling, more than 600 death row inmates in 31 states had their sentences commuted to life imprisonment. In response to this and subsequent United States Supreme Court rulings, the Virginia General Assembly made sweeping changes to the State s statutes governing capital cases in 1975, and introduced additional modifications in Among the 1975 changes, the General Assembly elevated first-degree murder to capital murder only when one of six specified felonies accompanied the murder and also made the death penalty mandatory in these cases. Later, in 1977, after the United States Supreme Court invalidated statutes making the death penalty mandatory, legislators eliminated execution as the sole punishment for any capital crime, established a separate sentencing trial for capital cases, and provided for the automatic appeal of death sentences. Over the course of the next two decades the Virginia General Assembly expanded the scope of capital punishment to include 20 different types of premeditated murder. In the years since these new laws were adopted, changes became evident in the pattern of State executions. On average, Virginia has executed slightly more than three persons per year in the post-furman era, accounting for a significant share of the executions nationwide. While questions about the racial disparities associated with the use of the death penalty in the Commonwealth 5

23 have persisted since the Furman decision, blacks have accounted for 51 percent of all executions compared to 86 percent in the period from 1908 to the time before the United States Supreme Court s landmark 1972 ruling. Virginia s Death Penalty System Prior to 1972 During the first 70 years of the 20 th century, Virginia was one of 42 states that permitted the execution of convicted criminals. In many of these states, the use of the death penalty could be traced to the English traditions that took root in the American colonies. Under English law, any person convicted of a felony faced a mandatory death sentence. Because of the harshness of this system, colonial judges complained that it was virtually impossible to secure guilty verdicts for felony offenses because juries considered the punishment disproportionate to the crime. As the Virginia General Assembly moved to design its own system of capital punishment and mitigate the harshness of the colonial death penalty system, two central questions had to be addressed: (1) What should be the scope of the Virginia's capital punishment statutes? (2) How much discretion should juries be given when deliberating a sentence of death? Scope of Virginia's Capital Punishment Statutes. In 1796, when the Virginia General Assembly first established the use of State executions as a permissible punishment for capital crimes, only the crime of first-degree murder could bring the punishment of death. By the time the United States Supreme Court began to hear challenges to state death penalty statutes almost 200 years later, the number of capital crimes identified in Virginia's statute had grown to 14 (Table 1). 6

24 Table 1 Evolution of Capital Punishment Statutes In Virginia, Year Crime Defined As Capital Offense Crimes Added To Capital Punishment Statutes 1796 First Degree-Murder 1805 Arson, Treason 1866 Burglary, Armed Robbery, Rape 1868 Armed robbery expanded to include partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat of presenting firearms Attempted Rape 1904 Kidnapping 1922 Entering a bank with the intent to commit larceny while armed with a deadly weapon 1934 Possession or use of a machine gun in any crime of violence 1960 Kidnapping expanded to include all types of abduction with the death penalty as possible punishment when the victim was a female under the age of 16 for purposes of prostitution or concubinage; or when kidnapping was conducted with the intent to extort money, pecuniary benefits, or to defile the victim Possession or use of a sawed-off shotgun in any crime of violence or capital offense Note: Prior to 1865, a separate and harsher set of capital punishment laws were applied to slaves. Sources: Virginia Acts of Assembly, 1866, 1968, 1994, 1904, 1922, 1934, and Capital Punishment in Virginia, 58 Va. L.Rev. 97, (1972). A few of these crimes were traditional capital offenses, common in many of the states that authorized executions. For example, three of Virginia s 14 capital offenses first-degree murder, kidnapping, and treason -- were considered capital crimes in the majority of states. However, by 1972, only three other states had as many as 10 capital offenses (Virginia Law Review, 1972). As an example of the uniqueness of the State's capital punishment statutes, Virginia was the only state in the nation that authorized the death penalty as punishment for the crime of "entering a bank with the intent to commit larceny while armed with a deadly weapon." 7

25 Jury Discretion. The second element of Virginia s system of capital punishment that warrants discussion was the discretion the General Assembly granted juries in meting out punishment in capital cases. Under Virginia law, juries that were convened for capital crimes were given unrestricted discretion in deciding whether a person convicted of the relevant crime would be executed. For example the statute that defined the punishment for first-degree murder in the State read as follows: Murder of the first degree shall be punished with death, or at the discretion of the jury, by confinement in the penitentiary for life (Acts of Assembly, 1866). The Code of Virginia was, however, silent on the factors a jury should consider in the exercise of this discretion. This meant that individual jurors were free to act according to their own judgment or conscience without the guidance of a set of criteria or standards that would either support or work against a sanction of death. As a result, in arriving at a decision for a given case, some jurors might consider certain evidence to be mitigating or aggravating and others might not. This unfettered discretion created inconsistencies both within and across juries that deliberated in capital cases. State Executions from 1908 to Although this broad statutory scheme for capital crimes and unlimited jury discretion did not result in wholesale executions in the State during the early part of the 20 th century, reasons for concern about the fairness of the system were clearly evident. A reliable count of the number of executions conducted prior to 1972 must begin in the year that the State centralized its executions in the State penitentiary through the use of electrocution. Executions in Virginia and other states were halted in

26 through "unofficial moratoriums" while the United States Supreme Court began to consider cases challenging the constitutionality of the death penalty. During the 54-year span from 1908 to 1962, Virginia executed a total of 236 inmates an average of more than four prisoners per year (Figure 1). Figure 1 Executions in Virginia, 1908 to 1962 Number of Executions Annual Average Executions = * * Time Span * These time spans, unlike the others reported in the graphic, do not equal 10 years. Source: Virginia Law Review, Capital Punishment in Virginia, While precise numbers are not available, it was evident, given the broad scope of Virginia s capital punishment statutes, that juries were returning a sentence of death for only a small fraction of the capital-eligible cases. Proponents of the State s system of capital punishment pointed to this limited use of the death penalty as an indicator that juries were reserving the punishment for the most atrocious or egregious crimes, consistent with the intent of the 9

27 legislature. Others argued that the few eligible cases that received the sanction of death were virtually indistinguishable from the thousands that did not. More damaging to the integrity of the system were the stark racial disparities associated with State-administered executions. Of the 236 persons who were executed from 1908 to 1972, 86 percent were black (Figure 2). Moreover, executions for the capital crimes of rape, attempted rape, and armed robbery, appear to have been reserved exclusively for the punishment of blacks. In particular, of the 41 persons executed for rape, none were white. Yet, over this same time period, 45 percent of all persons who were incarcerated for rape were white (Virginia Law Review, 1972). Additionally, each of the 14 persons executed for attempted rape was black. Finally, all five armed robbery cases that resulted in executions involved black defendants. These outcomes along with Figure 2 Executions in Virginia by Race, 1908 to 1962 Total 236 Murder 176 Rape 41 Attempted Rape 14 Armed Robbery 5 14% White 20% White 86% Black 80% Black 100% Black 100% Black 100% Black Source: Virginia Law Review, Capital Punishment in Virginia,

28 the data on executions in other states heightened public concern about the overall fairness of capital punishment, triggered constitutional challenges to the death penalty, and prompted the previously mentioned moratoriums. The United States Supreme Court Invalidates All Capital Punishment Statutes As the unofficial moratorium on executions continued through the early 1970s, the United States Supreme Court agreed to hear two pivotal cases regarding the constitutionality of the death penalty. In McGautha v. California and Crampton v. Ohio, the Supreme Court reviewed the claim that capital punishment was unconstitutional because it violated certain aspects of the 14 th Amendment. In a second case, heard one year later, the Court considered whether the death penalty was unconstitutional because it amounted to cruel and unusual punishment. The two cases that raised this claim -- Jackson v. Georgia and Branch v. Texas -- were consolidated for review by the Court with the third case of Furman v. Georgia. Death Ruled Cruel and Unusual Punishment by the United States Supreme Court in The first major attack on capital punishment in the 1970s called the entire system into question as a violation of the due process clause of the 14 th amendment. This claim (McGautha v California) criticized the failure of the State to provide juries with standards or criteria on which to base life or death decisions. In Crampton v. Ohio, an additional claim was made against the use of a single trial in which the jury determined both the guilt and punishment of the accused. According to the petitioner, in a single trial, defendants would have to take the stand to offer any evidence of mitigating 11

29 circumstances. However, by doing so, these defendants faced the possibility of incriminating themselves under cross-examination. In a 6-3 opinion, the United States Supreme Court ruled against both claims. Nonetheless, when presented with the claims in Furman v. Georgia -- that the outcomes of the system of capital punishment represented cruel and unusual punishment -- the United States Supreme Court narrowly (by a 5-4 vote) ruled in favor of Furman. Two justices rejected capital punishment as per se unconstitutional. Three justices, in support of the 8th amendment challenge held that the statutory processes by which defendants were being sentenced to death were unconstitutional. Each of the justices involved in the decision filed individual opinions. For example, Justice Douglas offered the following: In a Nation committed to equal protection of the laws there is no permissible caste aspect of law enforcement. Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position A law that stated that anyone making more than $50,000 would be exempt from the death penalty would plainly fail, as would a law that in terms said that blacks, those who never went beyond the 5 th grade in school, or those who were unpopular or unstable should be the only people executed. A law which in the overall view reaches that result in practice has no more sanctity than a law which in term provides the same. Thus the discretionary practices statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on cruel and unusual punishment. Since Virginia and the states that authorized the use of the death penalty had similar statutory schemes, the practical effect of the landmark 12

30 Furman ruling was substantial. Specifically, all existing death penalty statutes nationwide were invalidated and the sentences for the more than 600 inmates on death row at that time were commuted to life. Virginia Reforms Its System of Capital Punishment While the United States Supreme Court ruling in Furman v. Georgia was a clear signal to the states that the statutes governing the application of capital punishment were flawed, the Court strongly hinted that the death penalty under certain statutory schemes could be considered constitutional. Accordingly, Virginia and many other states began the work of rewriting their statutes to bring them in compliance with the rulings of the Court. These states took their lead from the dissenting opinion of Chief Justice Burger, who stated: Since the two pivotal concurring opinions turn on the assumption that the punishment of death is now meted out in a random and unpredictable manner, legislative bodies may seek to bring their laws into compliance with Court s ruling by providing standards for juries and judges to follow in determining the sentence in capital cases or by more narrowly defining the crimes for which the penalty is to be imposed. Virginia Code Commission Recommends Reform. As all of these issues were being debated in the Court, the 1971 Virginia General Assembly directed the Virginia Code Commission to study a number of issues including the State s criminal code. Two years later, the Commission presented its report which directly addressed the problems with Virginia s capital punishment statutes. In light of the decision in Furman v. Georgia, the Commission concluded that the death penalty should no longer be an available punishment for certain types of first-degree murder, abduction, robbery, less aggravated 13

31 rape, arson, armed burglary, and the previous capital crimes involving use of a machine gun or shotgun in a crime of violence. On the question of rape, the Commission recognized that the provisions of Virginia s law at that time were unconstitutional under Furman. Therefore, a recommendation was made to divide rape into two categories -- capital rape for aggravated situations which would be punishable by death and other forcible rape that would carry a twenty-year to life prison term. Based on the Commission s recommendations, the General Assembly established a new definition of capital crime in Virginia. Under the new law (which was enacted in 1975 and modified in 1977), first-degree murder would constitute capital murder when it was committed under the following circumstances: in the commission of abduction with the intent to extort money or a pecuniary benefit; as a part of contract killing, referred to in the statute as murder for hire; by an inmate in a penal institution; in the commission of a robbery while armed with a deadly weapon; during the commission of, or subsequent to, rape; and the killing of a law enforcement officer when the murder was committed for the purpose of interfering with the law enforcement officer s performance of his duties. As further provided by law, persons convicted of any of these crimes faced a mandatory death sentence. While Virginia was in the process of revising its criminal codes, the United States Supreme Court ruled on five death penalty cases that were based 14

32 on new death penalty statutes passed in response to the Court s ruling under Furman. In the cases of Woodson v. North Carolina and Roberts v. Louisiana, the Supreme Court rejected the use of the death penalty as a mandatory punishment for any broad category of crimes such as rape. However, in Gregg v. Georgia, the Court sanctioned the use of the death penalty in states whose system of capital punishment contained the following elements: guided discretion for juries in two-phase trials where the first trial would be used to determine the defendant's innocence or guilt and the second trial would be used to set punishment; a process where both mitigating and aggravating factors are explicitly considered in the second phase of the trial; and an independent judicial review of the appropriateness of the death sentence. Virginia Revisits Its Capital Punishment Statutes. In light of the United States Supreme Court s rulings, the General Assembly made three important changes to its statutory scheme for capital punishment in First, mandatory death sentences for capital crimes were repealed. Although the General Assembly did not change its existing definition of capital punishment, it gave juries the authority to impose a life sentence as opposed to death. Second, to address the United States Supreme Court s expectation that jurors in capital cases be given some guided discretion in their deliberations concerning the fate of the convicted, the legislature required the use of bifurcated trial proceedings. The first phase of this process was designed to assess the guilt or innocence of the accused. For those persons found guilty, the legislature required that a sentencing phase be implemented in which the punishment for the defendant would be decided. Under the revisions to State law, the penalty of 15

33 death could not be imposed unless the Commonwealth proved that the accused would either pose a continuing threat to society if he were not executed (future dangerousness), or that his conduct in committing the crime was wantonly vile. To prove the element of future dangerousness, the State could rely on evidence of past criminal conduct, or the circumstances of the crime itself. While the General Assembly offered no detailed definition of conduct that should be considered vile, the law stated the existence of either torture, evidence of depravity of mind, or aggravated battery were sufficient to support a finding of vileness and justification for imposition of the death penalty. In addition, at the sentencing phase of the trial, the defendant s attorneys would be allowed to submit evidence of mitigating circumstances that could justify a sentence of life imprisonment, even if the one or both of the aggravators were proven. According to Section (B) of the Code of Virginia, the type of mitigating factors that could be presented include: the defendant s prior criminal history, the defendant s state of mind at the time of the crime, evidence of the victim s consent or participation in the defendant s conduct, and both the defendant s age and mental capacity at the time of the crime. Finally, to provide for the automatic review of capital convictions, the General Assembly required the clerk of the circuit court to transmit the trial record to the State Supreme Court within 10 days following the receipt of that record. Accordingly, the Court was then required to conduct an appellate review focusing on the existence of any claims of trial error outlined in the condemned person's 16

34 appeal. In considering the possibility of trial error, the Court was directed to determine whether the death sentence was imposed arbitrarily or under the influence of passion or prejudice. Also, using data on previous capital cases, the Court was required to determine whether the death penalty in the case before the Court was either excessive or disproportionate punishment. Based on these deliberations, the Virginia Supreme Court was required by the new law to either affirm the sentence of death, commute the punishment to life in prison or remand the case back to circuit court for a new trial or sentencing hearing. Virginia Expands Its Death Penalty Statutes Since 1977, Virginia has modified or added to the State's definition of capital crimes 14 times (Table 2). Premeditated murder remains the only capital crime, but there are now 20 different types of murder that qualify as such in the Commonwealth. At first inspection, these additions appear to have broadened the scope of capital murder in the Commonwealth beyond what was witnessed prior to the landmark United States Supreme Court cases in the 1970s. However, with a few notable exceptions -- such as murder for hire, murder of more than one person, and murder at the direction of a person engaged in running a criminal enterprise -- capital murder can only be charged when accompanied by a predicate felony such as rape, or robbery. Hence, even with these recent expansions to the statutes, capital murder in Virginia is more narrowly defined than it was prior to 1972 when any first-degree murder indictment brought with it the specter of execution. 17